Gunnett v. Girardier Bldg. and Realty Co.

• Decision Date: 19 March 2002
• Docket Number: No. ED 79188.,ED 79188.
• Citation: 70 S.W.3d 632
• Parties: Robert GUNNETT, Plaintiff-Appellant, v. GIRARDIER BUILDING AND REALTY CO., et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

70 S.W.3d 632

Robert GUNNETT, Plaintiff-Appellant, v. GIRARDIER BUILDING AND REALTY CO., et al., Defendants-Respondents.

No. ED 79188.

Missouri Court of Appeals, Eastern District, Division Four.

March 19, 2002.

Paul J. Passanante, St. Louis, MO, for appellant.

Mark G. Burns, Sunset Hills, MO, for respondent.

LAWRENCE E. MOONEY, Judge.

Through the vehicle of this appeal, we have been asked to offer definitive guidance on a question that has long vexed Missouri judges and legal commentators:¹ does the immunity afforded by the workers' compensation law shield a co-employee from a suit by his fellow worker?

Today we offer our answer: it depends.

A fact-dependent inquiry must be undertaken to determine whether liability may be imposed on the co-employee. This necessity flows from the intended scope of the immunity to be afforded by the workers' compensation law. A historical review of workers' compensation law clarifies the point.

Following in the steps of reform in western Europe at the end of the nineteenth century, most notably in Germany and England, various state legislatures began to enact workers' compensation legislation in the early 1900s. See 1 A. Larson, Workmen's Compensation Law, section 5.20 (1998). Though there were initial constitutional challenges and setbacks, enactment of workers' compensation laws spread swiftly across the country; by 1920, all but eight states had adopted compensation acts. 1 A. Larson, Workmen's Compensation Law, sections 5.20 and 5.30 (1998). Missouri followed in 1925.² Prior to the enactment of workers' compensation laws, an employee's only hope for redress for injuries sustained on the job was at common law. See E. Blair, Reference Guide to Workmen's Compensation Law, section 1:00 (1968). However, the employee was met with what has been described as the "unholy trinity" or the "wicked sisters" of common-law defenses: assumption of risk, contributory negligence and the fellow-servant doctrine.³ See W. Prosser, Law of Torts, section 80 at 526-7 (4th ed.1971); W. Keeton, Prosser and Keeton on Torts, section 80 at 573 (5th edition, 1984); See also Larson, supra section 4.30. Recoveries by injured workers were few and far between; it has been estimated that between 70 and 94 percent of injured workers who sought to recover for their physical injuries received nothing, leaving the burden of the injury upon the injured worker. See Todd v. Goostree, 493 S.W.2d 411, 416 n. 2 (Mo.App.1973)(noting that of the 50,000 accidents reported in Missouri in 1921, only ten percent received any compensation.); Blair, supra section 1:00; Keeton, supra section 80 at 572; Larson, supra section 4.50.

Workers' compensation statutes were enacted to ameliorate these harsh realities. See Todd, 493 S.W.2d at 416; Blair, supra section 1:00; Larson, supra section 5.20. As Larson notes, the necessity for workers' compensation legislation arose out of the sharp increase in industrial accidents accompanying the rise of the factory system and the simultaneous decrease in the employee's common-law remedies for his injuries. Larson, supra section 4.00. Workers' compensation legislation was based on certain foundational principles— to provide employees with rapid, definite and certain compensation for workplace injuries, and to place the burden of such losses on the industry. Todd, 493 S.W.2d at 416; Bethel v. Sunlight Janitor Service, 551 S.W.2d 616, 618 (Mo. banc 1977). For as so aptly stated "the cost of the product should bear the blood of the workman." Keeton, supra section 80 at 573. And it is well established that enactment of workers' compensation laws was not meant as a supplement to the common law, but rather the workers' compensation laws are wholly substitutional in character and create entirely new rights and remedies. Todd, 493 S.W.2d at 416.

In creating these new rights and remedies, workers' compensation laws can be viewed as representing a compromise—a give and take between the employer and the employee. Workers' compensation laws provide a no-fault system of compensation for the employee. Akers v. Warson Garden Apartments, 961 S.W.2d 50, 56 (Mo. banc 1998); Keeton, supra section 80 at 573; Larson, supra section 2.10. The employee, who sustains an injury through an accident arising out of and in the course of employment, is provided certain compensation, without the necessity of having to prove fault on the part of the employer, and without being subject to the `unholy trinity' of common-law defenses. See Gambrell v. Kansas City Chiefs Football Club, Inc., 562 S.W.2d 163, 165 (Mo.App. 1978); Todd, 493 S.W.2d at 416; Bethel, 551 S.W.2d at 618; Akers, 961 S.W.2d at 56. In exchange for definite compensation for all work-connected injuries, the employee foregoes his right to sue his employer for negligence and to obtain the common-law measure of damages in cases where fault could be shown. Leicht v. Venture Stores, Inc., 562 S.W.2d 401, 402 (Mo.App.1978). From the employer's perspective, the employer accepts absolute liability, assuming a broader range of liability than it might have had at common law, under a fault-based system of liability. See Id.; Akers, 961 S.W.2d at 56. But, in exchange, the employer is protected since the compensation under the workers' compensation statutes is the injured employee's exclusive remedy against the employer; the employer is protected from the possibility of having to pay out the full measure of common-law damages. See Leicht, 562 S.W.2d at 402; Gambrell, 562 S.W.2d at 165; Section 287.120 RSMo. 2000.⁴

Thus, workers' compensation laws address the rights and responsibilities as between the employer and the employee for work-related injuries. Workers' compensation laws are not meant to be a substitute for common-law actions for wrongs or people not comprehended within the law. Deckard v. O'Reilly Automotive, Inc., 31 S.W.3d 6, 14 (Mo.App. W.D.2000); Gambrell, 562 S.W.2d at 165; section 287.120.2. Missouri's workers' compensation act does not take away the employee's right to bring a common-law action against an offending third person. Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913, 916 (1950). An employee is free to bring a common-law action against negligent third parties. Zueck v. Oppenheimer Gateway Properties, Inc., 809 S.W.2d 384, 390 (Mo. banc 1991). Given the foundations upon which workers' compensation law is based, this only makes sense; there has been no such give and take between the injured employee and the negligent third party, as there has been between an employee and his employer. Nor does this third party share in the burden and obligation of financing the compensation fund. See Wengler v. Druggists Mut. Ins. Co., 583 S.W.2d 162, 167 (Mo. banc 1979). Thus, since the third party does not share the burdens, they should not be entitled to the immunity which the workers' compensation law provides for the employer.

And so, we return to our co-employee. It has long been established in Missouri that a co-employee is regarded as a "third party" under workers' compensation law, and amenable to an action at common law.⁵ Sylcox v. National Lead Co., 225 Mo.App. 543, 38 S.W.2d 497, 502 (1931). Missouri is in the distinct minority of states which permit an injured worker to bring a negligence action against a co-employee.⁶ See 6 A. Larson, Workers' Compensation Law, section 72.11 n. 13.2 (1998); Hedglin v. Stahl Specialty Co., 903 S.W.2d 922, 928 (Mo.App. W.D. 1995)(Smart, J., concurring). Nevertheless, our workers' compensation statute, as it exists today, allows for such actions; however, not all actions will lie. See e.g., Kelley v. DeKalb Energy Co., 865 S.W.2d 670 (Mo. banc 1993); Collier v. Moore, 21 S.W.3d 858 (Mo.App. E.D.2000); Sexton v. Jenkins & Associates, Inc., 41 S.W.3d 1 (Mo.App. W.D.2000).

When one brings a common-law negligence action, the plaintiff must "establish the existence of a duty on the part of the defendant to protect plaintiff from injury, failure of the defendant to perform that duty and, that plaintiff's injury was proximately caused by defendant's failure." Krause v. U.S. Truck Co., Inc., 787 S.W.2d 708, 710 (Mo. banc 1990). So too when an injured worker seeks to bring a negligence action against his co-employee. Thus, as in other common-law actions, the threshold matter is to establish the existence of a duty owed by the co-employee. But, it is not simply the existence of a duty on the part of the co-employee, but the nature of the duty involved which is key in determining whether a co-employee may be held liable. This is the focus of the `Wisconsin approach' to co-employee immunity that we adopted in State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo.App. E.D. 1982).⁷ As so aptly described by the Vermont court, the touchstone of co-employee common-law liability is "whether the negligence occurred in the performance of a non-delegable duty of the employer as opposed to arising out of an obligation owed to the injured employee." Gerrish v. Savard, 169 Vt. 468, 739 A.2d 1195, 1198-99 (1999). For only in the latter case will an action lie.

In adopting the "Wisconsin approach" in Badami, this court held that "charging the employee chosen to implement the employer's duty to provide a reasonably safe place to work merely with the general failure to fulfill that duty charges no actionable negligence." Badami, 630 S.W.2d at 180. On this point, there is little dispute; this holding of Badami has been widely followed. See e.g., Wright v. St. Louis Produce Market, Inc., 43 S.W.3d 404 (Mo.App. E.D.2001); Felling v. Ritter, 876 S.W.2d 2 (Mo.App. W.D. 1994); Lyon v. McLaughlin, 960 S.W.2d 522 (Mo.App. W.D.1998); Davis v. Henry, 936 S.W.2d 862 (Mo.App. E.D.1997); State ex rel. Feldman v. Lasky, 879 S.W.2d 783 (Mo.App. E.D.1994). The decision of Badami reflects the overall principle that if a co-employee is negligent in his discharge of the employer's non-delegable duty, the co-employee cannot be held personally...